*

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0382p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CORNELIUS WAYNE HOEVENAAR,

Plaintiff-Appellee,

v.

ALAN LAZAROFF,

Defendant-Appellant.

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No. 03-4119

On Remand from the United States Supreme Court.

No. 03-00190—Algenon L. Marbley, District Judge.

Submitted: June 8, 2004

Decided and Filed: September 8, 2005 

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

_________________

COUNSEL

ON BRIEF: Todd R. Marti, Scott M. Campbell, OFFICE OF THE ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. David A. Singleton, Carol R. Camp, Cincinnati, Ohio, for Appellee.

_________________

OPINION _________________

DANNY C. REEVES, District Judge. Plaintiff Cornelius Hoevenaar is a native American

of Cherokee ancestry currently serving a life sentence in the Ohio prison system. While

incarcerated, Hoevenaar began to practice a native religion which prohibits him from cutting his

hair. As a result, Hoevenaar claims that prison rules regulating hair length violate his right to

practice his religious beliefs and are in violation of the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq. (2000).

Following a hearing on the Plaintiff’s request for a temporary injunction, the district court

granted limited relief under RLUIPA, allowing Hoevenaar to maintain a “kouplock” (a two inch by

two inch square section at the base of the skull that is grown longer than the person’s remaining

hair). This Court reversed the district court’s decision, in light of Cutter v. Wilkinson, 349 F.3d 257

(6th Cir. 2003), rev’d, 125 S. Ct. 2113 (2005), which held that the RLUIPA was unconstitutional.

Hoevenaar v. Lazazroff, 108 Fed. Appx. 250 (6th Cir. 2004), vacated by 125 S. Ct. 2536 (2005).

1
No. 03-4119 Hoevenaar v. Lazaroff Page 2

1

The district court’s conclusions regarding the First Amendment issue have not been challenged in this appeal.

Subsequently, the Supreme Court reversed this Court’s decision in Cutter and remanded the instant

matter for further consideration in light of its holding. Following remand from the Supreme Court,

this Court ordered the parties to file letter briefs to address Warden Lazaroff’s alternative arguments

for reversing, which were not addressed in this Court’s prior decision.

Again, after reviewing this matter, we conclude that the district court failed to give proper

deference to prison officials with respect to the issue of whether a kouplock presented security,

identity, or other concerns similar or in addition to those presented by the grooming regulation in

general. Therefore, we again REVERSE the decision of the district court granting injunctive relief

to Hoevenaar.

BACKGROUND

At times relevant to this proceeding, Hoevenaar was incarcerated at the Madison

Correctional Institution serving a life sentence. Beginning around 1998, Hoevenaar began following

the practices of his Native American religion, which include growing his hair long. He claims that

a fundamental tenet of this religion prohibits the cutting of his hair. This practice, however, is not

permitted by an Ohio prison regulation that provides:

Haircuts shall be provided as needed. Hair and hairstyles shall be clean, neatly

trimmed and shall not extend over the ears or the shirt collar. Hair and hairstyle shall

not protrude more than three inches from the scalp. Braids and plaits may be worn

subject to the limitations of this rule. The following hairstyles or facial hair are not

permitted: Initials, symbols, dyes, multiple parts, hair disproportionately longer in

one area than another (excluding natural baldness), weaves, wigs, dreadlocks and

shaved heads. Other hairstyles not specifically listed herein may be prohibited if

they are determined to be either a threat to security or contrary to other legitimate

penological concerns. 

Ohio Admin. Code § 5120-9-25(D).

As a result of the conflict presented, Hoevenaar commenced an administrative proceeding

challenging the relevant portion of the regulation. On February 19, 2003, he was notified by the

office of Chief Inspector that his grievance had been denied and that the decision of the Inspector

was affirmed. The Chief Inspector further instructed that “unless you have a Court ordered

exemption, you are obligated to adhere to the inmate grooming code as stated in administrative rule

5120-9-25.”

After his administrative grievance was denied, Hoevenaar filed suit challenging the Ohio

regulation under the RLUIPA. Following a hearing on the Plaintiff’s request for a temporary

injunction, the district court granted limited relief allowing Hoevenaar to maintain a kouplock. In

addressing Hoevenaar’s likelihood of success, the court analyzed his RLUIPA claims as well as his

First Amendment claim.1

As the district court noted, RLUIPA is similar to the Religious Freedom Restoration Act of

1993 (RFRA) in that the court must determine whether the plaintiff is likely to succeed in

demonstrating that the regulation in issue imposes a substantial burden on his religious exercise.

Hoevenaar v. Lazaroff, 276 F. Supp. 2d 811, 818 (S.D. Ohio 2003). Assuming the plaintiff makes

this initial showing, the court next considers whether the regulations meet strict scrutiny, i.e., the

regulation must be “the least restrictive means” towards furthering “a compelling governmental
No. 03-4119 Hoevenaar v. Lazaroff Page 3

interest.” Cutter, 125 S. Ct. at 2116 (quoting 42 U.S.C. § 2000cc-1(a)-(2) (2000)). Again, this test

is the same as that previously imposed under RFRA.

The district court found that Warden Lazaroff was “significantly likely” to satisfy his burden

of demonstrating that the grooming regulation furthers a compelling state interest in identifying

prison inmates and suppressing contraband in prisons. Hoevenaar, 276 F. Supp. 2d at 819.

Notwithstanding this finding, it concluded that the warden was unlikely to succeed in demonstrating

that blanket application of the regulation, without individual exceptions, would be “the least

restrictive means of furthering the government’s interest in the efficient identification of escaped

inmates.” Id. at 824. According to the district court, “an exception to the grooming regulation . . .

that would allow for the growing of a ‘kouplock’ based on sincerely held religious beliefs, and

would be granted to inmates who are determined not to pose a significant security risk, is a less

restrictive means of furthering the compelling interest in identifying inmates.” Id.

In addition to requiring prison officials to consider the particular hair style in issue, the

district court indicated that the officials should consider the inmate’s particular security

classification and any specific medical condition that would bear on his security risk. According

to the district court: 

Just as the Defendant takes into consideration the fact that female inmates, as a

whole, pose less of a security risk than male inmates as a justification for allowing

female inmates to grow their hair long, so should the Defendant take into account the

different security risks of various male inmates in making the decision of whether to

allow them to grow a kouplock. In particular, here, the Plaintiff will likely succeed

in demonstrating that, as a medium security prisoner who is losing feeling in his feet

[due to neuropathy resulting from diabetes], he is unlikely to pose a security threat

by being permitted to grow a kouplock. 

Id.

Based on these findings, the district court concluded that limited injunctive relief should be

granted, allowing Hoevenaar to maintain a kouplock.

STANDARD OF REVIEW

“We review the grant of a preliminary injunction for an abuse of discretion, but questions

of law are reviewed de novo.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 685 (6th Cir. 2002).

In particular, the district court’s analysis of whether the prison regulations were the least restrictive

means is a question of law, subject to de novo review. Lawson v. Singletary, 85 F.3d 502, 511-12

(11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996).

ANALYSIS

Warden Lazaroff argues that the absolute ban on long hair: (1) promotes security by

preventing inmates from hiding contraband in their hair, and (2) prevents inmates from quickly

changing their appearance after a prison-break by cutting their hair. Hoevenaar counters that these

concerns can be satisfied by less restrictive alternatives to Warden Lazaroff’s absolute kouplock ban,

such as: (1) allowing inmates to grow their hair long, but requiring them to be subjected to periodic

hair searches, conducted by the prisoners under the supervision of prison officials; (2) taking

pictures of inmates with and without long hair to distribute in the event of an escape; and (3)

permitting, on a case-by-case basis, those inmates with a low security risk to grow a kouplock. The

district court concluded that, while Hoevenaar would likely lose on his first two alternatives, he had
No. 03-4119 Hoevenaar v. Lazaroff Page 4

a significant likelihood of success on his third proposed “less restrictive” alternative. Hoevenaar, 276 F. Supp. 2d at 823-24.

In contesting Hoevenaar’s assertion that the prison could permit inmates with sincerely held

religious beliefs to grow a kouplock, provided that the inmate was low-risk, Warden Lazaroff argued

that:

escape attempts and contraband problems arise even in minimum and medium

security prisons. Thus, it would not be helpful to assume that minimum or medium

security inmates would not pose the security risks attempted to be prevented by these

regulations. Moreover, the Defendant maintains that individualized exemptions are

problematic because they cause resentment among the other inmates, a copycat

effect, and problems with enforcement of the regulations due to staff members’

difficulties in determining who is exempted and who is not.

Hoevenaar, 276 F. Supp. 2d at 822. The district court, however, discounted these concerns. 

First, the district court noted that a kouplock does not provide the same opportunities to

conceal facial characteristics upon escape, because it is only a two-inch square of hair growing from

the base of the skull. Id. at 824. Second, the district court noted that “multiple pictures of an inmate

with a kouplock are not necessary as a kouplock cannot be modified or rearranged to alter the

appearance of either the inmate’s face or his profile.” Id. Regarding the issue of the difficulty of

searching inmates’ hair, the district court noted that searches of inmates’ hair performed by the

inmates, with staff supervision, is the same method employed during strip searches. Id. at 822.

Further, the district court noted that individualized, religious exceptions were permitted prior to

1991 and Warden Lazaroff did not demonstrate that contraband issues improved after removing the

warden’s discretion to grant an exception. Id. at 823. Finally, the district court noted that Ohio

prison regulations permitted women to grow their hair to the middle of their backs, Ohio Admin.

Code § 5120-9-251, due to their lower overall security risk. Id. at 823, 824. Therefore, it

determined that the warden is clearly capable of having some policy variations to account for

differing security risks. For these reasons, the district court concluded that Hoevenaar would likely

succeed on the merits in arguing that a policy of permitting kouplocks for inmates with sincerely

held religious beliefs, who pose a low security risk, was a less restrictive alternative to achieving

the state’s compelling interest in ensuring prison security.

Regarding the district court’s determination that allowing a kouplock to be grown by certain

prisoners who do not pose a significant safety risk based on their sincerely held religious beliefs,

under the guise of being the least restrictive means of furthering the government’s security and

identification interests, the court improperly substituted its judgment for that of prison officials.

Espinoza v. Wilson, 814 F.2d 1093, 1097 (6th Cir. 1987); Brown v. Johnson, 743 F.2d 408, 412-13

(6th Cir. 1984). In conducting an analysis of whether the regulation in issue was the least restrictive

means of furthering the government’s compelling security interest, the district court did just what

the Supreme Court and Congress have warned against: substituting its judgment in place of the

experience and expertise of prison officials. 

As the Eighth Circuit recently noted, cases interpreting the RFRA have consistently held that

courts must give due deference to the judgment of prison officials, given their expertise and the

significant security concerns implicated by prison regulations. Murphy v. Mo. Dept. of Corr., 372

F.3d 979, 987 (8th Cir. 2004) (citing Weir v. Nix, 114 F.3d 817 (8th Cir. 1997)); Ochs v. Thalacker, 90 F.3d 293 (8th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)). Because Congress,

in passing the RLUIPA, evinced a desire to continue its goal of not “overly burden[ing] prison

operations, but rather intended to provide as much protection as possible to prisoners’ religious

rights without undermining the security, discipline, and order of those institutions,” the Murphy
No. 03-4119 Hoevenaar v. Lazaroff Page 5

court concluded that RFRA cases according deference to prison decisions were applicable to cases

brought pursuant to the RLUIPA. Murphy, 372 F.3d at 987-88 (citing 146 Cong. Rec. S6687 (daily

ed. July 13, 2000) (statement of Senator Hatch); see also Cutter, 125 S. Ct. at 2123 (noting that

Congress intended for courts to give “due deference to the experience and expertise of prison and

jail administrators in establishing necessary regulations and procedures to maintain good order,

security and discipline, consistent with consideration of costs and limited resources.”) (quoting 146

Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Senator Hatch and Senator Kennedy

on RLUIPA) (quoting S. Rep. No. 103-111, at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892,

1899, 1900)); Hart v. CSP-Solano, No. CIV S-02-0577, 2005 WL 1683581, at *5 & n.8 (E.D. Cal.

July 8, 2005) (“Congress has consistently indicated, in passing both RFRA and RLUIPA, that giving

deference to the experience and expertise of prison officials is still appropriate.”); Ra v. Braxton, No.

7:04 CV 00637, 2005 WL 1533124, at *3 (W.D. Va. June 29, 2005) (“[C]ourts will afford prison

administrators due deference in establishing necessary regulations and procedures to maintain good

order, security and discipline consistent with considerations of costs and limited resources.”) (citing

Cutter, 125 S. Ct. at 2123). 

In Espinoza v. Wilson, 814 F.2d 1093 (6th Cir. 1987), a prisoner First Amendment case

applying a least restrictive means test, id. at 1098, this Court held that, once prison officials have

provided expert testimony sufficient to justify the security regulation and resultant impingement of

prisoner rights, “the courts must defer to the expert judgment of the prison officials unless the

prisoner proves by ‘substantial evidence . . . that the officials have exaggerated their response’ to

security considerations.” Id. at 1099 (quoting St. Claire v. Cuyler, 634 F.2d 109, 114-15 (3d Cir.

1980) (citations and footnote omitted)); accord Hamilton v. Schriro, 74 F.3d 1545, 1552-54 (8th Cir.

1996). In Hamilton, the Eighth Circuit dealt with a hair length restriction challenge brought under

the RFRA, concluding that:

[t]he safety and security concerns expressed by prison officials were based on their

collective experience of administering correctional facilities. These are valid and

weighty concerns. Moreover, there is no viable less restrictive means of addressing

these concerns. Therefore, we conclude that the district court erred in its

interpretation and application of the least restrictive means prong of the compelling

interest test in RFRA. The district court failed to give due deference to the prison

officials’ testimony that long hair presented a risk to prison safety and security and

that no viable less restrictive means of achieving that goal existed.

Id. at 1555.

In this case, the district court recognized that “the Court is to accord great deference to the

views of prison administrators and officials regarding [RLUIPA] issues. This deference is mandated

by the legislative history of RLUIPA, which indicates that its framers adopted the legislative history

of the [RFRA], RLUIPA’s predecessor.” Hoevenaar, 276 F. Supp. 2d at 818. The court, however,

went on to criticize Warden Lazaroff’s numerous reasons for imposing a blanket ban on all

excessive hair growth. 

While the district court is not required to blindly accept any policy justification offered by

state officials, the district court’s analysis does not reflect the requisite deference to the expertise

and experience of prison officials, as required by case law interpreting the RFRA and RLUIPA. For

instance, Warden Lazaroff noted that “individualized exemptions are problematic because they

cause resentment among the other inmates, a copycat effect, and problems with enforcement of the

regulations due to staff members’ difficulties in determining who is exempted and who is not.”

Hoevenaar, 276 F. Supp. 2d at 822. The district court discounted this concern, however, by noting

that Warden Lazaroff did not produce any evidence demonstrating that the pre-1991 regulations,

which permitted individualized exceptions, led to increased contraband or escapes.
No. 03-4119 Hoevenaar v. Lazaroff Page 6

Testimony from Major Guyton, a security specialist with 19 years experience in prisons, and

Warden Lazaroff, a 16 year veteran of the penal system, provided compelling evidence that the

district court’s solution of allowing kouplocks on an individualized basis for low-threat prisoners

was not sufficient to protect the state’s interest in safe and secure prisons. For instance, Major

Guyton noted that contraband was a problem for all types of prisoners. In fact, Hoevenaar has a

long history of possessing and hiding contraband – he has twice attempted to escape from prison,

utilizing contraband. Major Guyton further testified that contraband could be hidden in a kouplock,

including dangerous items, such as an ice pick. Warden Lazaroff testified regarding various smaller

items that could be hidden in a kouplock, including items Hoevenaar had previously been found

guilty of possessing. In addition, both men testified to the numerous problems created by allowing

individualized exceptions. Thus, the facts of this case belie the district court’s conclusions.

In summary, the district court did not give proper deference to the opinions of these veterans

of the prison system. Their testimony provided substantial evidence that the prison’s regulations

were the least restrictive means necessary of promoting prison safety and security. Although the

district court noted that the prison did not produce data demonstrating that the pre-1991 use of

discretionary exceptions to prison regulations resulted in more dangerous prisons, the testimony

from Guyton and Warden Lazaroff was sufficient to demonstrate that individualized exceptions did

not sufficiently protect the state’s interest in security and safety, particularly in light of the deference

accorded to the judgment of prison officials regarding prison operations. Hoevenaar did not rebut

the state’s expert testimony regarding the problems with his suggested alternatives “by substantial

evidence” that the officials exaggerated their response to security considerations. Espinoza, 814

F.2d at 1099.

CONCLUSION

Because the district court failed to give proper deference to prison officials with respect to

the issue of whether a kouplock presented security, identity, or safety concerns, its decision is

REVERSED and this case is REMANDED for further proceedings consistent with this opinion.